On 4 April a law was introduced giving police the power to impose an instant 80 fine on employees in bars and pubs who sell alcohol to a 'drunken person'. This new Penalty Notice for Disorder is part of the government's latest attempt to provide the police with tools that will be effective in their drive to reduce the problems of alcohol-related public disorder.
The government's view is that this new power will help the police to target the licensed premises that contribute to disorder problems. Home Office minister, Caroline Flint, said: "This offence will get home a very strong message to bar staff who wilfully sell drink to people who have had too much and who are contributing to a much wider social problem for communities."
Measures intended to tackle binge drinking have been welcomed by many agencies, but employers operating licensed premises expressed concern about the practical implications for bar managers and their staff. Of course, it has been an offence for licensed premises to serve people who are drunk for some time. So the government believes it is reasonable to expect that bar staff will be trained already to recognise when somebody has had too much to drink and how to deal with people who cause problems.
However, in a crowded pub or club, it may not be that easy to identify a 'drunken person' who asks to be served. More importantly if an on-the-spot fine is imposed, who is going to pay it? Rather unhelpfully, the Home Office said each licensed premises will have to decide whether the fine will be paid by management or by the individual bar person. Given that if someone disagrees with a fixed penalty notice they can go to court, it is important to know who is liable for the fine.
In the absence of clear guidance, responsibility for the payment of a fixed penalty will have to be sorted out between employer and employee as part of the terms of employment. This situation is not the first of its kind. For example, it is not uncommon for fines and fixed penalties for driving offences committed by employees in the performance of their duties to become their personal liability under their employment contract. Many employers are keen to encourage a good standard of driving and also to avoid picking up insurance excesses and illegal parking fines. To help to achieve these aims, the employment contract will have a term imposing personal liability on the employee and giving the employer the right to deduct the fine or penalt